Returning Military Members Allege Job Discrimination — By Federal Government

February 19, 2012 (Washington Post) – Every year, more than a thousand National Guard, reserve and active-duty troops coming back from Iraq, Afghanistan or other military duties complain of being denied jobs or otherwise being penalized by employers because of their military obligations.

The biggest offender: the federal government.

It is against federal law for employers to penalize service members because of their military service. And yet, in some cases, the U.S. government has withdrawn job offers to service members unable to get released from active duty fast enough; in others, service members have been fired after absences.

In fiscal 2011, more than 18 percent of the 1,548 complaints of violations of that law involved federal agencies, according to figures obtained under the Freedom of Information Act.

“On the one hand, the government asked me to serve in Iraq,” said retired Army Brig. Gen. Michael Silva, a reservist who commanded a brigade in Iraq and was fired from his job as a U.S. Customs and Border Patrol contractor on his return. “On the other hand, another branch of government was not willing to protect my rights after serving.”

The federal government is the largest employer of citizen-soldiers. About 123,000 of the 855,000 men and women currently serving as Guard members and reservists, or about 14 percent, have civilian jobs with the federal government. Over a fourth of federal employees are veterans.

The Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted in 1994 to ensure that members of the military do not face a disadvantage in their civilian careers because of their service, calls on the federal government be “a model employer” for service members.

But critics contend that the federal government has been far from perfect, and they fear that with troops back home from Iraq and more on the way from ­Afghanistan, violations of the law could increase.

Obama “priority”

The problems persist even though the Obama administration has made a priority of cutting the rate of veterans’ unemployment, which is significantly higher among post-9/11 veterans than in the population as a whole.

Advocates for veterans say the system set up for service members to challenge alleged USERRA violations is onerous, with no single agency having oversight. And they note that the federal government doesn’t have much incentive to improve. The federal government can be ordered to pay back wages for being in willful violation of the law, but it incurs no other penalties. A private company, by contrast, could be liable for double an employee’s lost wages.

“There seems to be a feeling that the federal government can get away with what they’re doing,” said Matthew Estes, a USERRA lawyer with the law firm Tully Rinckey.

Some federal employers have forced reservists to leave military service as a condition of their hiring, which is also against the law, according to Samuel Wright, director of the Service Members Law Center at the Reserve Officers Association.

“Federal agencies are routinely doing that,” Wright said.

The Defense Department, including the Army, Navy, Air Force and various defense agencies, had 75 USERRA cases filed with the Labor Department last year, while Veterans Affairs had the second most, with 46 complaints. Other major offenders include the Department of Homeland Security and the U.S. Postal Service.

Public-sector jobs, including federal, state and local, accounted for 27 percent of the 2,884 USERRA cases handled in fiscal 2011 by Employer Support of the Guard and Reserve, a Defense Department office that tries to resolve problems through informal mediation and education.

Federal officials acknowledge the violations and say that the chief challenge has been educating supervisors in the field. The VA began in-depth training in November for managers to ensure compliance with “both the spirit and the letter of USERRA,” said Mary Santiago, director of the VA’s Veteran Employment Services Office.

The Defense Department, along with the VA and six other agencies, formed a working group late last year to examine how to improve federal compliance.

For service members, high rank has not necessarily proved to be a protection. Silva, a 1978 West Point graduate, served with the Army Reserve on deployments in Qatar and Afghanistan while pursuing a civilian career in finance, and commanded the 411th Engineer Brigade, an Army Reserve unit, during a one-year deployment to Iraq.

Shortly before the brigade returned to the United States in August 2007, Silva sent a form letter to each employer for his 4,000 soldiers, including his own boss, reminding them of their obligations under USERRA law.

Silva expected to return to his job as a contract employee at a Customs and Border Patrol facility in Lorton. But a Customs contracting officer told the contractor, SPS Consulting, that the government wanted to keep Silva’s replacement in the job, and warned the contractor in an ­e-mail that Customs “would cancel the contract” if Silva was reinstated.

After being laid off, Silva filed USERRA complaints against ­Customs and SPS. The Justice Department declined to take action against the contractor, but the U.S. Office of Special Counsel, which reviews alleged government wrongdoing, won a decision holding Customs responsible.

Burden is on the vet

Silva, who reached a confidential settlement with Customs, remains angry that the Justice Department did not pursue the case. “They refused to give any kind of explanation,” he said. “The whole burden is put on the serving soldier to defend your case.”

The former brigadier general’s experience is not unusual. Some employees penalized for their military service describe being forced to wend their way through a frustrating bureaucracy before they get recourse. Sometimes, veterans and advocates say, they never get it.

In fiscal 2010, the Labor Department recommended that Justice officials pursue 43 alleged violations of USERRA. The Justice Department agreed to represent only three, but helped settle nine other cases. The department declined to represent 18 service members, despite Labor’s conclusion that their cases had merit. Another dozen cases were still being considered by Justice at the end of the fiscal year.